Gordon v. Horsley

• Decision Date: 17 January 2001
• Docket Number: No. A088568.,A088568.
• Citation: 86 Cal.App.4th 336,102 Cal.Rptr.2d 910
• Court: California Court of Appeals Court of Appeals
• Parties: Louis A. GORDON, Plaintiff and Appellant, v. Don HORSLEY, as Sheriff, etc., et al., Defendants and Respondents.

102 Cal.Rptr.2d 910

86 Cal.App.4th 336

Louis A. GORDON, Plaintiff and Appellant, v. Don HORSLEY, as Sheriff, etc., et al., Defendants and Respondents.

No. A088568.

Court of Appeal, First District, Division 3.

January 17, 2001.

Rehearing Denied February 13, 2001.

David P. Clisham, William H. Sortor, Clisham & Sortor, San Francisco, for Appellant.

Thomas F. Casey III, County Counsel, County of San Mateo; Carol L. Woodward, Deputy County Counsel, County of San Mateo, for Respondent.

Martin J. Mayer, Cynthia W. Blaylock, Mayer & Coble, Long Beach, for Amici Curiae, California State Sheriffs Association et al., in support of Respondents.

Lloyd W. Pellman, County Counsel of the County of Los Angeles; Gordon W. Trask, Principal Deputy County Counsel of the County of Los Angeles, for Amicus Curiae, California Association of Counties in support of Respondents.

PARRILLI, J.

Does a Sheriff have authority to administratively restrict a deputy's peace officer powers to arrest and to carry a concealed firearm off duty, when the deputy has shown he may present a danger to the public if he is allowed to exercise those powers? We conclude a Sheriff does have such authority.

However, we also conclude that a deputy has a right to administratively appeal such restrictions on his peace officer powers. Since the deputy in this case was denied that right, we reverse and remand with directions.

I INTRODUCTION AND BACKGROUND

Appellant Louis A. Gordon is a San Mateo County Deputy Sheriff and consequently a "peace officer" pursuant to Penal Code section 830.1.¹ Deputy Gordon's status as a peace officer confers on him two benefits that accompany him throughout this state, even when he is off duty. First, he is exempt from the provisions of the penal statute that outlaw possession of a concealed firearm.² Second, as a peace officer, he has legal authority to make an arrest under circumstances where a private citizen could not lawfully do so.³

Deputy Gordon contends these statutorily conferred benefits trump the Sheriffs inherent power to control the conduct of his employees. He contends the Sheriff cannot restrict a deputy's off-duty legal authority to arrest, and cannot prohibit a deputy from carrying a concealed firearm off duty. As we explain, a Sheriff can restrict those powers, and properly did so here.

A. The Incident Leading to Discipline.

In August of 1994, Deputy Gordon was off duty driving on Interstate Highway 280 in his 1978 Ferrari sports car when a light truck/utility vehicle cut him off. Gordon, who was with his girlfriend, followed the truck off the freeway and onto suburban surface streets. At a stoplight, Deputy Gordon displayed his badge to the driver of the truck and ordered him to stop. However, the driver, Anselmo Pring, did not stop. Also in the truck with Pring were his wife, his teenage daughter, and his niece.

Deputy Gordon continued to follow Pring to Sonja Court, a dead end street. Although the testimony regarding the seriousness of Deputy Gordon's conduct is in conflict, it is undisputed that Deputy Gordon pulled his service weapon, pointed it at Pring, and told him to turn off his engine.

The arbitrator who heard Deputy Gordon's grievance tended to discount the most damning evidence against Gordon.⁴ Nevertheless, even the arbitrator concluded Deputy Gordon had violated section 33 of the Sheriffs General Order 7-1, which states that "Off-duty members of [the] department will refrain from making misdemeanor traffic arrests. Pursuit of another vehicle in the off-duty officer's automobile is unlawful and dangerous."

Moreover, Deputy Gordon contended he was pursuing Pring for a felony assault with a deadly weapon. The arbitrator found Gordon's testimony on this point "insupportable." "Pring's account of what occurred on the freeway is even more bizarre than [Deputy Gordon's], and it is quite likely that he in fact cut [Deputy Gordon] off in a dangerous manner. Nevertheless, Pring was driving with his wife, his daughter, and his niece, and it is absurd that without provocation he would have maliciously intended to force a complete stranger off the road. Because of his own personal involvement, [Deputy Gordon] grossly overreacted to Pring's unsafe driving by following him, attempting to pull him over, and eventually causing a confrontation on Sonja Court." The arbitrator concluded Gordon used "terrible judgment" in the encounter.

B. Disciplinary Proceedings.

Initially, the Sheriff suspended Deputy Gordon for two days without pay, effective January 25, 1995, based on the Pring incident. Deputy Gordon filed a grievance of this discipline but, before that grievance could be heard, the Sheriff learned new facts about the Pring incident that caused him to conclude the two day suspension was inadequate. Consequently, on December 5, 1995, the Sheriff rescinded the two-day suspension and instead demoted Deputy Gordon to the lower rank of correctional officer.⁵ After a Skelly hearing (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774), the demotion became final on January 11, 1996.

Deputy Gordon asked for binding arbitration of his demotion pursuant to the memorandum of understanding between his union and the county. The issue before the arbitrator was whether Gordon's demotion was "for just cause."

The arbitrator found the demotion was improper on procedural grounds. The arbitrator observed that the issue before him involved "what is commonly referred to as industrial due process. . . . [I]t has been held that just cause requires an employer to administer discipline in a manner that provides employees with basic procedural fairness. . . . [I]f under the circumstances discipline is imposed in a manner which is prejudicial to an employee's ability to defend himself or herself or which offends fundamental concepts OF fairness, the discipline lacks just cause.

"In this case, the underlying incident was immediately the subject of an internal affairs investigation, resulting in the imposition of a two-day suspension. . . . The decision ten months later to rescind the suspension and impose more severe discipline was an extraordinary delay which raised serious issues of fairness."

The Sheriff attempted to justify his tardy decision to demote Deputy Gordon by claiming he had relied on newly discovered evidence. Among other things, the Sheriff relied on a letter he had received from a third party witness (see footnote 4, ante ) who described Deputy Gordon as using profanity, shouting at the top of his lungs, and "acting like someone high on drugs" when he stopped Pring.

The arbitrator concluded that this new evidence did not justify the decision to demote Deputy Gordon ten months after he had been suspended. The arbitrator reasoned: "The Department's decision to rescind the two-day suspension ten months after it was imposed and to demote [Deputy Gordon] to correctional officer represented procedural unfairness which, unless justified on the basis of newly-discovered evidence, established a lack of just cause for the demotion. . . . [T]he claimed newlydiscovered evidence was either known at the time of the original suspension, or it was not an adequate basis for increasing the discipline."

The arbitrator did conclude, however, that the two-day suspension was appropriate.

The arbitrator ordered the Sheriff to immediately reinstate Gordon as a Deputy Sheriff, and awarded him back pay.

The Sheriff complied with this order. However, in a letter dated September 24, 1996, the Sheriff informed Deputy Gordon that ne would continue to be assigned to the correctional facility where he was already working. In addition, the Sheriff stated: "Although you are reinstated with full pay and benefits of a Deputy Sheriff, I have grave concerns that you have demonstrated poor judgment and decision making ability both on and off duty. Therefore, you will not be issued a duty firearm. In addition, you are prohibited from carrying a concealed firearm and from exercising peace officer powers during your off duty hours."⁶

After the San Mateo County Civil Service Commission refused to hear Gordon's appeal of these restrictions, he filed a civil action for a writ of mandate (Code Civ. Proa., § 1085) and other causes of action to (1) force the Sheriff to issue him a firearm and to authorize his use of full peace officer powers; and (2) to order the County Civil Service Commission to hold a hearing on Gordon's appeal of the restrictions. After a hearing, the court denied the writ of mandate on the merits. The court subsequently granted the Sheriffs motion for judgment on the pleadings as to the remaining causes of action on the ground the key issue had been decided in the mandate action, and thus the other causes of action were barred by res judicata and collateral estoppel. Gordon filed a timely notice of appeal from the ensuing judgment.

II DISCUSSION

A. The Sheriff had Authority to Impose the Off Duty Restrictions.

As indicated, the primary issue in this case is whether the Sheriff has authority to administratively restrict a deputy's peace officer powers to arrest and to carry a concealed firearm off duty, when the deputy has shown he may present a danger to the public if he is allowed to exercise those powers. We conclude the Sheriff does have that authority.

Reduced to its essence, Gordon's argument is that his status as a peace officer confers on him the right to exercise peace officer arrest authority and to carry a concealed firearm off duty. Moreover, Gordon contends the Sheriff has no authority to restrict those rights, short of demoting him to a non peace-officer classification.

As we have noted, Deputy Gordon's status as a peace officer confers on him two benefits that accompany him throughout this state, even when he is off duty. First, he is exempt from the provisions of the penal statute that outlaws possession of a concealed firearm. (Penal Code § 12027, subd. (a)(1)(A).)...